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Recovery of possession from the trespassers : Calcutta high court

Recovery of possession from the trespassers : Calcutta high court

 


The enabling provision of order we won rule 17 of the code of Civil Procedure empowers the court to permit the party to amend or alter the bleeding at any stage of the suit if the same is necessary for determination and slash or adjudication of the disputes involved therein. The stage of the suit has not been defined which necessarily imbibe within itself the date on which the plaint is presented till the judgment, is upheld by the High Court of Calcutta, through the learned bench of civil judge (senior division), First court, Barasat in the title suit number 72 of 2001 in the case of Munsilal Rai V Amar Nath Sen & Anr.

Facts

 

The plaintiffs parties filed a suit for recovery of possession from the trespassers, and admittedly the trial of the suit is complete and it was posted at the argument stage. From the defendant side a serious exception is taken on the description of the property in the schedule appended to the plaint. It is submitted by the petitioner that the property is not sufficiently described which is the requirement under order 7 rule 3 of the code of Civil Procedure and therefore the suit must fail. It is further argued that the prayer for mandatory injunction on the basis of the facts constituting the cause of the action before the institution of the suit cannot be allowed to be incorporated at the time of an argument which would virtually invite the parties to de novo the trial. It is further stated that such prayer having barred by law of limitation should not be allowed to be incorporated by way of an amendment. Lastly it is submitted that the right which accrued to the defendant cannot be taken away by permitting the amendment to be carried out in the plaint after a gap of so many years.

The learned advocate of the opposite parties submits that the amendment being formal in nature and the suit having instituted in the year 2001 cannot stand in the way of allowing the amendment which does not change the nature and the character of the suit. It is further submitted that there is no fetter on the part of the code to allow such amendment to be carried out in the pleading if it is necessary for the purpose of determination of the disputes.

The instant suit has been instituted for recovery of possession treating the petitioner as trespasser. Order VII rule 3 of the code postulates, where the subject matter of the suit is immovable property the plane shall contain the description of the property sufficient to identify it and should also specify the boundaries and the numbers.

Admittedly the plane does not contain the boundary on this official description. There is no penal consequences provided for non inclusion of the sufficient description of the property. Furthermore the defendant against whom a claim for recovery of possession of trespasser is made is defending such position being aware of the property occupied by him. Mirror sufficient description or misdescription of the property when both the parties are aware about the respective rights cannot act as a deterrent On the part of the plaintiffs in succeeding to prove his case made out in the plaint.

Judgement

It was help that the plaintiff who ought to have promptly apply for amendment have committed delay in taking out the same more particularly at the stage of argument something more than the mere correction of the description of the property in the schedule of the plaint is prayed by way of such amendment. There is no explanation far to speak of such explanation which has given in the said application. Certain facts which were within the knowledge of the plaintiffs cannot be permitted to be incorporated in the plaint in the absence of any plausible explanation. So far as the description of the schedule of the property is concerned this court feels that it would never take away any right of the defendant nor shall invite buddy Novo trial and therefore should be allowed. It is no doubt true that a considerable delay has been caused in filing the said application on the rights of the defendant can be protected by imposing costs.

PRIME LEGAL is the full service law firm that has won a national award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

 

Judgement reviewed by Rani Banerjee.

.

Recovery of possession from the trespassers : Calcutta high court

 

The enabling provision of order we won rule 17 of the code of Civil Procedure empowers the court to permit the party to amend or alter the bleeding at any stage of the suit if the same is necessary for determination and slash or adjudication of the disputes involved therein. The stage of the suit has not been defined which necessarily imbibe within itself the date on which the plaint is presented till the judgment, is upheld by the High Court of Calcutta, through the learned bench of civil judge (senior division), First court, Barasat in the title suit number 72 of 2001 in the case of Munsilal Rai V Amar Nath Sen & Anr.

Facts

 

The plaintiffs parties filed a suit for recovery of possession from the trespassers, and admittedly the trial of the suit is complete and it was posted at the argument stage. From the defendant side a serious exception is taken on the description of the property in the schedule appended to the plaint. It is submitted by the petitioner that the property is not sufficiently described which is the requirement under order 7 rule 3 of the code of Civil Procedure and therefore the suit must fail. It is further argued that the prayer for mandatory injunction on the basis of the facts constituting the cause of the action before the institution of the suit cannot be allowed to be incorporated at the time of an argument which would virtually invite the parties to de novo the trial. It is further stated that such prayer having barred by law of limitation should not be allowed to be incorporated by way of an amendment. Lastly it is submitted that the right which accrued to the defendant cannot be taken away by permitting the amendment to be carried out in the plaint after a gap of so many years.

The learned advocate of the opposite parties submits that the amendment being formal in nature and the suit having instituted in the year 2001 cannot stand in the way of allowing the amendment which does not change the nature and the character of the suit. It is further submitted that there is no fetter on the part of the code to allow such amendment to be carried out in the pleading if it is necessary for the purpose of determination of the disputes.

The instant suit has been instituted for recovery of possession treating the petitioner as trespasser. Order VII rule 3 of the code postulates, where the subject matter of the suit is immovable property the plane shall contain the description of the property sufficient to identify it and should also specify the boundaries and the numbers.

Admittedly the plane does not contain the boundary on this official description. There is no penal consequences provided for non inclusion of the sufficient description of the property. Furthermore the defendant against whom a claim for recovery of possession of trespasser is made is defending such position being aware of the property occupied by him. Mirror sufficient description or misdescription of the property when both the parties are aware about the respective rights cannot act as a deterrent On the part of the plaintiffs in succeeding to prove his case made out in the plaint.

Judgement

It was help that the plaintiff who ought to have promptly apply for amendment have committed delay in taking out the same more particularly at the stage of argument something more than the mere correction of the description of the property in the schedule of the plaint is prayed by way of such amendment. There is no explanation far to speak of such explanation which has given in the said application. Certain facts which were within the knowledge of the plaintiffs cannot be permitted to be incorporated in the plaint in the absence of any plausible explanation. So far as the description of the schedule of the property is concerned this court feels that it would never take away any right of the defendant nor shall invite buddy Novo trial and therefore should be allowed. It is no doubt true that a considerable delay has been caused in filing the said application on the rights of the defendant can be protected by imposing costs.

PRIME LEGAL is the full service law firm that has won a national award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

 

Judgement reviewed by Rani Banerjee.

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